Citation Nr: 1145704
Decision Date: 12/14/11 Archive Date: 12/21/11
DOCKET NO. 06-20 594 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUES
1. Entitlement to a disability rating in excess of 10 percent for bronchial asthma.
2. Entitlement to a disability rating in excess of 10 percent for sub-retinal hemorrhage, left eye, traumatic, with edema of the macular area, representing fovealar macular retinitis of unknown etiology.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Ann L. Kreske, Associate Counsel
INTRODUCTION
The Veteran served on active military duty from July 1967 to December 1970.
This appeal comes to the Board of Veterans' Appeals (Board) from a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which, inter alia, continued the 10 percent disability ratings for bronchial asthma and sub-retinal hemorrhage, left eye, traumatic, with edema of the macular area, representing fovealar macular retinitis of unknown etiology.
The Veteran also perfected an appeal of the RO's denial of service connection for a skin disorder, claimed as skin knots; however, that issue was resolved in the Veteran's favor in a May 2011 rating decision. The Veteran has not appealed either the initial rating or effective date assigned for that condition. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (the Veteran must separately appeal these downstream issues). Therefore, that issue is not before the Board.
This case was previously before the Board in July 2009, at which time the Board remanded the issues currently on appeal for further evidentiary development. It has returned to the Board and is again ready for appellate action.
FINDINGS OF FACT
1. Bronchial asthma results in Forced Expiratory Volume in One Second (FEV-1) of 81 percent predicted, and FEV-1/Forced Vital Capacity (FVC) of 84 percent.
2. The evidence of record does not show that the Veteran requires daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication.
3. The Veteran's left eye disability is manifested by, at worst, corrected visual acuity of 20/70 and a loss of field vision of 51.5 degrees. There is no evidence of pain, rest requirements, or episodic incapacity.
CONCLUSIONS OF LAW
1. The criteria for a disability rating in excess of 10 percent for service-connected bronchial asthma have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.96, 4.97, Diagnostic Code 6602 (2011).
2. The criteria for a disability rating in excess of 10 percent for service-connected sub-retinal hemorrhage, left eye, traumatic, with edema of the macular area, representing fovealar macular retinitis of unknown etiology, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 4.75, 4.76, 4.76a, 4.84a, Diagnostic Codes 6005-6007 (in effect prior to December 10, 2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Duties to Notify and Assist
Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in July 2005 and July 2009. These letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claim, (2) informing the Veteran about the information and evidence the VA would seek to provide, and (3) informing the Veteran about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Thus, the Board finds that the RO has provided all notice required by the VCAA as to the three elements of notice. 38 U.S.C.A. § 5103(a). See Pelegrini II, Quartuccio, supra.
However, the Board acknowledges the RO did not provide VCAA notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded until after the rating decision on appeal; thus, there is a timing error as to the additional VCAA notice. Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In Pelegrini II, the U.S. Court of Appeals for Veterans Claims (Court) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Here, additional VCAA notice was provided in May 2006 and July 2009, after issuance of the initial unfavorable AOJ decision in September 2005. However, both the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) and the Court have since further clarified that the VA can provide additional necessary notice subsequent to the initial AOJ adjudication, with a subsequent readjudication of the claim, so that the essential fairness of the adjudication, as a whole, is unaffected because the appellant is still provided a meaningful opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV) (holding that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
In this case, after providing VCAA notice in July 2005, followed by subsequent VCAA and Dingess notice in May 2006 and July 2009, the RO readjudicated the claim in an SSOC dated in May 2011. Thus, the timing defect in the notice has been rectified.
With regard to the additional notice requirements for increased rating claims, as is the case here, the July 2009 VCAA letter also was compliant with the U.S. Court of Appeals for Veterans Claims' (Court) decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Specifically, this letter advised the Veteran of the evidentiary and legal criteria necessary to substantiate higher ratings for his service-connected bronchial asthma and left eye disorder. In any event, the Federal Circuit Court has vacated the Court's previous decision in Vasquez-Flores, concluding that generic notice in response to a claim for an increased rating is all that is required. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). Regardless, overall, the Board is satisfied that the RO provided both generic and specific VCAA notice as to the increased rating claim when considering all of the VCAA letters provided.
With respect to the duty to assist, the RO has secured the Veteran's service treatment records (STRs) and VA treatment records. Private treatment records also have been associated with the claims file. Further, the Veteran was provided VA examinations in connection with his claim. Finally, he also has submitted numerous statements in support of his claim. There is no indication that any additional evidence remains outstanding. The duty to assist has been met. 38 U.S.C.A. § 5103A.
Finally, a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board is satisfied as to compliance with the instructions from its July 2009 remand. Specifically, the RO was instructed to provide the Veteran with notice compliant with Vazquez-Flores, supra; obtain all records of treatment for the Veteran's bronchial asthma and left eye disorder; and provide the Veteran with VA examinations to determine the nature, extent, and current levels of severity of his bronchial asthma and left eye disorder. The Board finds that the RO has complied with these instructions to the extent possible. The Veteran was sent a request for information on private treatment records in July 2009 and provided VA examinations in January 2009, January 2010, and October 2010. The Board finds that the VA examination reports substantially comply with the remand directives of the July 2009 remand as they responded to the Board's queries in its remand. Stegall v. West, 11 Vet. App. 268 (1998).
Analysis
Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
The basis of disability evaluations is the ability of the body as a whole, of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.
If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.
Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but findings sufficiently characteristic to identify the disease and the resulting disability, and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).
Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, the Court has held that VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. See Hart v. Mansfield, 21 Vet. App. 505 (2007). That is, the Board must consider whether there have been times when the Veteran's disability has been more severe than at others. If so, the Board may "stage" the rating. The relevant temporal focus for adjudicating the level of disability of an increased-rating claim is from one year before the claim was filed (here, June 2004) until VA makes a final decision on the claim. See Hart, supra. See also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).
A. Bronchial Asthma
The Veteran's service-connected asthma is currently rated as 10 percent disabling under Diagnostic Code 6602, bronchial asthma. 38 C.F.R. § 4.97.
Under Diagnostic Code 6602, a disability rating of 10 percent applies where the Veteran has a FEV-1 of 71- to 80-percent predicted, or FEV-1/FVC of 70 to 80 percent, or intermittent inhalational or oral bronchodilator therapy. A disability rating of 30 percent applies where the Veteran has a FEV-1 of 56- to 70-percent predicted, or FEV-1/FVC of 56 to 70 percent, or daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication. A disability rating of 60 percent applies where the Veteran has a FEV-1 of 40- to 55-percent predicted, or FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids.
A disability rating of 100 percent applies where the Veteran has a FEV-1 less than 40-percent predicted, or FEV-1/FVC less than 40 percent, or more than one attack per week with episodes of respiratory failure, or requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications.
The Veteran contends that his asthma has gotten worse. In this regard, a review of the evidence of record reveals no documentation of respiratory complaints or treatment in VA treatment records dated from June 2004 to March 2010.
The Veteran was provided a VA respiratory examination in August 2005. The Veteran reported symptoms of shortness of breath, especially after strenuous activity, dyspnea on exertion, and occasional productive coughing. He denied hymoptysis, anorexia. He also indicated that he had had no asthma attacks since his discharge from service in 1970. He was not on oxygen or any breathing treatments. Pulmonary functional test (PFT) results revealed FEV-1 of 93.6 percent predicted and FEV-1/FVC of 85 percent.
Another VA respiratory examination was provided in March 2007. At the time, the Veteran complained of shortness of breath on strenuous exercise and at night. He also reported productive coughing once or several times daily, weekly wheezing, occasional dyspnea, and frequent swelling of his legs. His treatments included use of an inhaler intermittently. The Veteran reported asthma attacks of less than weekly, but at least monthly. He had less than one per year of clinical visits for exacerbations. PFT results showed FEV-1 of 93.6 percent predicted and FEV-1/FVC of 85 percent.
Another VA respiratory examination provided in January 2009 revealed no complaints of shortness of breath. The Veteran was not on medication for his asthma. On examination, there was no evidence of abnormal breath sounds. PFT results were normal. PFT results showed FEV-1 of 81 percent predicted and FEV-1/FVC of 84 percent. The diagnosis was asthma, in remission.
Based on the findings above, the Veteran is not entitled to a disability rating greater than his currently assigned 10 percent. As discussed above, a 30-percent rating requires a FEV-1 of 56- to 70-percent predicted, or FEV-1/FVC of 56 to 70 percent, or daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication. In this regard, the evidence of record shows that the Veteran currently receives no treatment for asthma. He also does not require medication for his asthma. During the VA examination in March 2007, he reported treatment of less than once a year due to exacerbations. He also reported only intermittent use of an inhaler. In August 2005, he reported having had no asthma attacks since discharge from service. Additionally, his most recent PFT reveals FEV-1 and FEV-1/FVC levels at 81 and 84 percent, respectively. The August 2005 and March 2007 VA PFT results showed FEV-1 of 93.6 percent predicted and FEV-1/FVC of 85 percent. Thus, the Veteran's allegations of worsening asthma is unaccompanied by any such reports or other evidence of frequent episodes of respiratory failure or treatment. Consequently, a disability rating greater than 10 percent is not applicable in this case.
B. Sub-Retinal Hemorrhage, Left Eye, Traumatic, with Edema of the Macular Area, Representing Fovealar Macular Retinitis of Unknown Etiology
The Board now turns to analysis of the Veteran's claim for an increased rating for his service-connected sub-retinal hemorrhage, left eye, traumatic, with edema of the macular area, representing fovealar macular retinitis of unknown etiology.
At the outset, the Board notes that, during the pendency of the Veteran's appeal, the schedular criteria by which eye disabilities are rated changed. See 73 FR 66543 (November 10, 2008). However, because the amended regulations apply only to claims received by VA on or after December 10, 2008, and the Veteran filed his claim prior to that time, the appeal will be considered under the old criteria. See id.
The Veteran's service-connected left eye disability is rated under Diagnostic Codes 6005-6007 (choroiditis and intraocular hemorrhage, recent) as 10 percent. 38 C.F.R. § 4.84a (in effect prior to December 10, 2008).
Eye disorders are rated under 38 C.F.R. § 4.84a, in effect prior to December 10, 2008. Under the applicable rating criteria, choroiditis and intraocular hemorrhage are to be rated from 10 percent to 100 percent for impairment of visual acuity or field loss, pain, rest- requirements, or episodic incapacity, combining an additional 10 percent during continuance of active pathology. The minimum rating during active pathology is 10 percent. 38 C.F.R. § 4.84a, Diagnostic Codes 6000-6009 (in effect prior to December 10, 2008).
Visual acuity will be rated on the basis of the best distant vision obtainable after best correction by glasses. 38 C.F.R. § 4.75 (in effect prior to December 10, 2008). The severity of visual acuity loss is determined by applying the criteria set forth at 38 C.F.R. § 4.84a (in effect prior to December 10, 2008). Under these criteria, impairment of central visual acuity is evaluated from noncompensable to 100 percent based on the degree of the resulting impairment of visual acuity. See 38 C.F.R. § 4.84a, Diagnostic Codes 6061-6079. The percentage evaluation will be found from table V by intersecting the horizontal row appropriate for the Snellen index for one eye and the vertical column appropriate to the Snellen index of the other eye. For example, if one eye has a Snellen index of 5/200 (1.5/60) and the other eye has a Snellen index of 20/70 (6/21), the percentage evaluation is found in the third horizontal row from the bottom and the fourth vertical column from the left. The evaluation is 50 percent and the diagnostic code 6073. 38 C.F.R. § 4.83a (in effect prior to December 10, 2008).
With regard to examination of field vision, for VA evaluating purposes, the Goldmann-Bowl Perimeter test should be utilized with an III/4e size test object or the 3 millimeter (mm.) white test object. Any examination report indicating other size test objects should not be used to evaluate visual field loss because it would result in an incorrect evaluation. See 38 C.F.R. § 4.76 (in effect prior to December 10, 2008).
Under 38 C.F.R. § 4.76a (in effect prior to December 10, 2008), the extent of contraction of visual field in each eye is determined by recording the extent of the remaining visual fields in each of the eight 45 degree principal meridians. The number of degrees lost is determined at each meridian by subtracting the remaining degrees from the normal visual fields given in table III. The degrees lost are then added together to determine total degrees lost. This is subtracted from 500. The difference represents the total remaining degrees of visual field. The difference divided by eight represents the average contraction for rating purposes.
Under table III of § 4.76a, the normal visual field extent at the 8 principal meridians, in degrees, are: temporally: 85; down temporally: 85; down: 65; down nasally: 50; nasally: 60; up nasally: 55; up: 45; up temporally: 55. The total is 500 degrees.
Impairment of field vision is rated under 38 C.F.R. § 4.84a, Diagnostic Code 6080 (in effect prior to December 10, 2008). This code provides ratings for degrees of field vision impairment or alternative comparable visual acuity ratings. Note (2) under this code indicates that demonstrable pathology commensurate with the functional loss is required. The concentric contraction ratings require contraction within the stated degrees, temporally; the nasal contraction may be less. The alternative ratings are to be employed when there is ratable defect of visual acuity, or a different impairment of the visual field in the other eye. Concentric contraction resulting from demonstrable pathology to 5 degrees or less will be considered on a parity with reduction of central visual acuity to 5/200 (1.5/60) or less for all purposes, including entitlement to special monthly compensation under § 3.350(b)(2) (2005); however, not for the purpose of § 3.350(a).
Diagnostic Code 6081 indicates that a unilateral pathlogical scotoma that is large or centrally located is to be rated as 10-percent disabling. 38 C.F.R. § 4.84a. A Note under this code indicates that this is to be rated on loss of central visual acuity or impairment of field vision. Do not combine with any other rating for visual impairment.
Where only one eye is service-connected and loss of vision in the other eye is not, the loss of vision in the nonservice-connected eye is not considered in rating the service-connected eye (but is considered normal), unless there is total loss of vision in both eyes. 38 C.F.R. §§ 3.383(a)(1), 4.414 (in effect prior to December 10, 2008).
On review, there is no evidence of complaints of, or treatment for, left eye symptomatology in 2004 or 2005. A VA examination dated in August 2005 revealed eyelids that were normal with no ptosis, full extraocular muscles (EOM), normal cornea with no gluttate, posterior vesicles on the left lens, normal disks, possible left epiretinal membrane on the macule, normal peripheries except tow small atrophic scars left fundus at 5 o'clock, some decrease in the left upper field, and left eye refraction of 20/70. His average concentric contractions in the left eye were shown as 51.5. Visual field testing noted no detectable blind spot. The diagnostic impressions were early posterior subcapsular cataract in the left lens and possible epiretinal membrane in the left eye with some decreased upper fields.
A July 2006 VA treatment record noted complaints of poor central vision. An August 2006 VA ophthalmology consult showed a visual acuity of 20/30 in the left eye, normal pupils, full EOM, normal macula, normal periphery, and normal vessels. The diagnostic impressions were cataracts and hypertension with no retinopathy.
A March 2007 VA examination revealed eyelids with levator dehiscence with ptosis; full EOM; normal cornea with no gluttate; same left posterior vesicles; possible epiretinal membrane on the left macule; two small atrophic scars left fundus at 5 o'clock; full visual fields; no perimeter field loss; and left eye refraction of 20/30-glaring and 20/40 on the day of the examination. He had an average concentric contraction in the left eye of 45.
There is no evidence of complaints of, or treatment for, left eye symptomatology from 2007 to 2010. A January 2010 VA examination noted no complaints of symptoms other than central vision defect. Physical examination revealed moderate pigment clumping in the left macula. There was no visual field defect. Visual acuity of the left eye was shown to be 20/30 corrected for distant vision and 20/30 corrected for near vision. The left lens was intact and the left eye had a posterior subcapular cataract. The diagnosis was macular degeneration, dry both eyes.
An October 2010 VA examination revealed complaints of discharge, watering, visual field cut, glare, blurring, and impaired night vision. Physical examination revealed epiretinal membrane and pigment changes in the left macula. A visual field defect was found. The left eye had a scotoma present, centrally located with a size of 10 degrees. Left eye visual acuity was 20/60 uncorrected and 20/30 corrected for distant vision. Visual field testing, submitted as an addendum following the examination, revealed an average contraction of 45 degrees. Left lens was intact. The diagnoses were blind spot and cataracts.
Based on the above evidence, the Board finds that a higher initial rating than 10 percent for sub-retinal hemorrhage, left eye, traumatic, with edema of the macular area, representing fovealar macular retinitis of unknown etiology is not warranted. While the Veteran has a history of macular degeneration, loss of visual acuity, and a blind spot in the left eye, he describes no pain, no required rest, and no episodic incapacity due to his left eye disability. Furthermore, the loss of visual acuity was 20/70 at its worst. With the right eye being nonservice-connected and thus considered normal, the Veteran's service-connected left eye disability may be rated at 10 percent at most based on loss of visual acuity. As for visual field loss, the average concentric contraction was 51.5 at the worst, which also is to be rated as 10 percent disabling under Diagnostic Code 6080 for unilateral loss of field vision.
Thus, the Board finds that a disability rating in excess of 10 percent for the Veteran's left eye disability is not warranted. 38 C.F.R. § 4.3.
The Board notes that the 10 percent ratings it has continued for the Veteran's bronchial asthma and left eye disorder are in effective for the entire appellate period. Because there has been no occasion during the appellate period in which the Veteran's bronchial asthma and left eye disability have been more severe than 10 percent, as demonstrated by the Veteran's treatment records and examination results, there is no basis on which to stage the ratings for the disabilities on appeal. Hart, supra.
Finally, although it is possible to assign an extra-schedular evaluation, the Board finds no reason to refer the case to the Compensation and Pension Service to consider whether it is warranted. An extra-schedular evaluation under 38 C.F.R.
§ 3.321(b)(1) may be assigned when there is evidence of exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, to suggest that the Veteran is not adequately compensated by the regular Rating Schedule. See VAOPGCPREC 6-96. In this case, there is no evidence of any hospitalization associated with the disabilities in question. The Veteran's treatment has been on an outpatient basis, not as an inpatient. There also is no indication that the Veteran's disabilities on appeal markedly interfere with his employment.
ORDER
A disability rating in excess of 10 percent for bronchial asthma is denied.
A disability rating in excess of 10 percent for sub-retinal hemorrhage, left eye, traumatic, with edema of the macular area, representing fovealar macular retinitis of unknown etiology, is denied.
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A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs